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M EMOR IAL 



X 



HON. TH. H. BAIRD, 



FOR THE ENACTMENT OF MEASURES TO PRESERVE 



CONSTITUTION AND UNION 



OP THE STATES 



PRESENTED TO THE HOUSE OF REPRESENTATIVES, FEBRUARY 7, 1S63, AID REFERRED TO THE 
COMMITTEE ON THE JUDICIARY., 




PITTSBURGH, 

A, A> ANDERSON & SONS* PRINTERS, DISPATCH BUILDING, N03. 67 & 69 FIFTH STREET, 
1864. 



ERRATA.. 

Page 1_. 6th line from bottom: read — who sat in court. 
Page 16, 3d line from bottom: read — "Assiento contract" for fur- 
nishing aegroes. 
Page 20 ; 3d line from top: read — society of which. 

5th line from top : read — it m the hope. 

Oth line from bottom : read — choose one appraiser. 



NOTE. 

The following Memorial was presented to the House of Representatives by 
Bon. Mr. Lazear, Feb. 7th, 18G3, and was referred to the Committee on the Judi- 
ciary. No farther action having been taken upon the paper, and the position of 
its author having been misapprehended, it was, after the adjournment of Con- 
gress, withdrawn, in order that those of his friends who take an interest in the 
subjects it discusses might ascertain, by private perusal, the opinions it main- 
tains. The result of this perusal has been a repeated request for its publication ; 
and in deference to the wishes thus expressed, with the hope also that, even 
amidst the excitement and agitation of the times, counsels of moderation and 
regard for law as the only safeguard for our liberties, and the only method of 
restoring our beloved Union, may not fall unheeded, — the Memorial is now sub 
mitted to the judgment of the puhlic. 



MEMOEIAL. 



To the Senate and House of Representatives of the United 
States, in Congress assembled: 

I desire to avail myself of my privilege as a citizen, respectfully 
to approach your honorable bodies, to ask such legislative action as 
may tend to adjust rightly our disturbed social affairs, and end the 
deadly strife that is now desolating our country. 

With this view I beg to present some considerations, which I hope 
you will not regard as impertinent or obtrusive : — 

We are fighting to maintain our Constitution and our Union ; 
yet there is reason to fear that we may lose all that the Constitution 
was designed to protect, and all that makes our Union valuable. 

Your present session is pregnant with consequences for weal or 
woe ; and your proceedings must heal or harm the people you repre- 
sent. Even words are weapons, when uttered in a legislative hall. 

I pray you, therefore, as wise and patriotic statesmen, " to exer- 
cise with firmness and energy the constitutional powers with which 
you are vested ;" but, at the same time, I beg you, in the very lan- 
guage of President Washington, " to mingle in the operations of 
government every degree of moderation and tenderness which the 
national justice, dignity and safety may permit." (Speech to Con- 
gress Dec. 8th, 1795.) 

I suggest, however, no concession to rebels in ar n ns. Many of 
our citizens have renounced their allegiance, and are "levying war" 
against their government ; others are " giving ihem aid and com- 
fort." All of both classes are guilty of treason, and have incurred 
the penalty of the law. This must be inflicted upon them by the 
regular prescribed judicial process ; bvt if the baton of the Mar- 
shal is too weak to arrest offenders, bails and bayonets may be called 
to his aid, — in subserviency, however, always to the civil authority. 

It is only the "free, able-bodied, white male citizens," constitu- 
ting the "militia," that can be "called forth" to "suppress insur- 
rections." Foreign mercenaries, negroes, or savages, may not be 
used for such a purpose, against our own erring and deluded people. 
Our force should be mitigated by due forbearance and dignified con- 
ciliation ; as chastisement to reclaim — not as vengeance to destroy. 

The Constitution declares that "The Congress shall have power" 
" to provide for organizing, arming and disciplining the militia, and 
for governing such part of them as may be employed in the service 



of the United States." It is, however, "the militia of the several. 
iTA CBS " that is meant. 

President has no dominion, political or military, but what he 
- from tiic Con stitution, or what is vested in him bylaw. As 
u !i rative," h< may enforce the " rules and articles " enacted 
for the government of "officers and soldiers;" but he cannot add 
t them. He has no authority, at his mere will, under the pretext 
d! "public necessity," to assert an emergent sic jubeo, and thus 
subject civilians to military sway. Our Constitution and laws pre- 
elude the exercise of such arbitrary control. No man can "be de- 
prived of life, liberty or property without due process of law" and 
a "public trial by an impartial jury." — ("Amendments," Articles 
5th and 6th.) 

We have no "martial law r ," distinctively so called, which can over- 
ride the civil power and the established judicial administration. 
Tins despotic rule was forever "annulled" by Statute 17, Car. 1st. 

Armies ami navies do not, inherently, belong to our social system, 
i are the creations of Congress, and are supported and gov- 

erned by positive legislation. The "commander-in-chief," as such, 
can do no valid act without a legal sanction; and a "proclamation" 
by him is a mere brutum fulmen, unless it is sustained by a pre- 
vious act of the law-making power. 

A distinguished writer says: "Proclamations have the force of 
laws : but then they are supposed to be consistent with the laws 
already in being ; otherwise they arc superseded." 

Our Constitution and laws furnish no warrant for them ; and such 
extreme executive acts generally do more harm than good. In a 
nation convulsed by civil strife, they tend to strengthen rebellion into 
r< vohntion. 

In 1775, Lord Dunmore, Governor of Vftginia, in order to intim- 
Idate the (nqturbed people into submission, issued his "proclamation" 
,/■ daring martial law ; freedom to the slaves, and < neouraging them 
t, rise against tluir masters. It had, however, a contrary effect 
from the one inivnded. The public mind became greatly ex- 
eited, and more lixe.l in the purpose of asserting independence. 
I t, the historian of the period, says : "Even well-wishers to 

the British government censured this proposition, as tending to 
Loose? the bonds of society, t<a destroy domestic security, and in- 
stigate savages to the moat atrocious barbarities." 

The Governors of North and South Carolina (Mr. Murray, and 
Lord William Campbell) adopted similar plans of exciting the ne- 
groes to insurrection, and with like results. Such ultra schemes of 
--ion only produce violent resentment, without any benefit. 

I think the character of our conflict with the Southern people, 
who are in revolt, is not understood qv properly apprehended by our 
Commander-in-Chief and his subordinates. It seems to be regarded 
atest between two independent belligerent countries, in which 
all the inhabitants on both sides are necessarily in hostile position. 
The international laws and usages, as to conquests, booty and cap- 



lures, are supposed to be operative, and all questions about them 
are to be adjusted when a treaty is made. 

That is not our case. A portion of our people are in revolt ; 
but all the residents of the disturbed region who are free from any 
traitorous participation are still citizens, and are entitled to all the 
protection that the constitution guarantees to their personal rights. 
We have nothing to do with booty, plunder and other belligerent 
contingencies. It is the persons of the rebels we pursue — not their 
property. 

To admit that the " Confederate States," as they style themselves, 
form a separate nation, is to concede all that is claimed. We must 
then fight them according to the recognized laws of war, and we 
must make peace by treaty. Our Union cannot be so yielded. We 
must not negotiate with traitors. They must be brought back, and 
punished, — or pardoned, as maybe thought right. No terms, how- 
ever, can be offered. 

In our penal process, the law of our own country is the only rule 
in our military operations and in all their issues. We have nothing 
to do with the international code, except, from considerations of 
humanity, to allow flags of truce, exchanges, &c. Congress has not 
"declared war." 

Our army is a conservative force, analagous to a posse comitates- 
•on a great scale. It is employed in aid of the judicial power ; and 
is governed by congressional rules. The whole array must be com- 
posed of equal members of our political community. Consistently 
with freedom, none others can be alloived to take part in our domes- 
tic quarrel. 

In the purer ages of the Roman republic, the legions consisted 
entirely of citizens. It was not until Coesar determined to pass the 
Rubicon, in defiance of the Senate's decree, that the foreign ele- 
ment was introduced. He formed his "alauda," or "lark legion," 
of Gauls and strangers, and with their help became dictator. The 
lessons of experience are admonitory. The "Prcetorian guards" 
established despotism. (See 1 Gibbon, p. 106.) 

In 1795, before President Washington "called forth" the militia 
to suppress the " Whiskey Insurrection," he was "notified" by a 
Judge of the Supreme Court that, " in the counties of Washington 
and Allegheny, in Pennsylvania, the laws of the United States were 
opposed, and the execution thereof obstructed, by combinations too 
powerful to be suppressed by the ordinary course of judicial pro- 
ceedings, or by the powers vested in the Marshal of the district. 
(See speech to Congress, Nov. 1794/) 

Upon this judicial intimation, the President proceeded to exer- 
cise his function as " Commander-in-Chief." The constitutional 
"militia" were " called forth ;" a Judge and Marshal approached 
the disturbed region, supported by citizen soldiers. Warrants were 
issued ; ring-leaders were apprehended, tried before a regular court 
and jury, convicted and — pardoned. 

There was no suspension of the habeas corpus — not a single mill- 



6 

targ arrest of a citizen on pretense of the new crime of " disloyal- 
ty" or "sympathy;" there was no pillage, nor was any private 
property wantonly seized or destroyed. Thus was this alarming. 
outbreak happily quelled. 

Jt would rejoice every patriotic heart if our present social trouhles 
could be soon terminated, and cordial peace restored. So desirable 
a result can only be attained by the prudent and judicious action of 
your honorable bodies. The supreme power is with you, — as repre- 
senting the sovereignty of the people; and sad will be the day when 
you yield any portion of the radical empire entrusted to your 
charge. 

War can never restore our country to its former condition, when 
a citizen of one State could feel himself at home in any other; it 
may compel a mere acknowledged allegiance, but rancor would still 
brood. What would nominal union be worth, if we must regard 
the people of the South as conquered vassals or lurking traitors ? 
We cannot be really united States, unless the principles of our Con- 
stitution are maintained, and the rights of every citizen be equally 
protected. This depends upon the watchful care of Congress. In- 
judicious legislation ought to be avoided, and encroachments from 
any quarter firmly resisted. 

There have been administrative acts calculated to increase irrita- 
tion in the South, and that have given great dissatisfaction to loyal, 
conservative citizens. Some of them are invasions of private rights 
by executive officers of the Government. I will not remark upon 
tJt> m. When wrongs have been done by individuals having a "little 
brief authority," a legal remedy can be had. Our courts are open 
and free. No law, to ratify or sanction an outrage already done, 
can avail to protect the wrong-doer; because it would be ex post 
facto, and therefore prohibited by the Constitution. I leave such 
cases, therefore, — merely referring to the decision of the King's 
Bench, in "Sayre vs. Lord Rochford," the British Minister. (See 
1st Bissctt, p. 373.) 

There are other matters, however, of the highest interest to our 
country and to the world, that claim your prompt and earnest con- 
sideration. Allow me to present them to your notice. 

The Emancipation Proclamation of the President involves, in my 
opinion, more mischief than the burning of the Temple of Ephesus, 
which immortalized the incendiary. 

I come before your honorable bodies to pray that by timely legis- 
lation this unwarranted executive act may be "superseded," and the 
threatened evils prevented. 

If it is thought that this proclamation has any force as a Govern- 
i: fit edict, it would be very desirable that the question as to its 
validity should he submitted in some form immediately to the Su- 
preme Court. It will no doubt, at a future time, if our Union is 
preserved, come before that tribunal; for men will not be stripped 
oi* their property without seeking redress. But if it could be deter- 
mined now, it would be well, and might lead to safe adjustments. 



If the measure has no legal foundation to rest upon, Congress 
cannot confirm it, retrospectively, so as to relieve from responsibility. 

I think that no statesman can say that it has any authority ; and 
that it tends to horrible evils, bloody history abundantly shows. 

As a political measure, it has no legislative basis, and is there- 
fore unconstitutional. The President cannot make a law ; nor can 
Congress, retroactively, give the "force of law" to a proclamation 
that does not rest upon a previous enactment. It must therefore 
stand or fall upon its own merits. 

It is equally baseless as a military order. The usages of war, 
between belligerents, have no application. The militia called forth 
to suppress insurrections form, as I have said, an armed "posse," in 
aid of the civil officer. Their duty is to arrest rebels, and bring 
them to justice. In doing this, if they find them in battle array, 
they may shoot them, but must not plunder their houses, or burn 
their fences. They are not employed to destroy or seize property, 
but to capture persons who are charged with crime. Everything 
belonging to a traitor is protected by law, until his person is appre- 
hended, and he is tried and convicted by a court and jury. Then 
only does the question of forfeiture arise. 

If it were granted, however, that the revolted region was a sepa- 
rate belligerent power, still I maintain that there would be no war- 
rant for this proclamation. By the laws of war, as now held by 
civilized and enlightened nations, there is no plunder of private 
property allowed. Public stores, munitions, arsenals, and whatever 
may be used for defense or for annoying the enemy, may be seized, 
but individual rights are not disturbed. In the modern wars of 
Europe, armies bought and paid for their supplies, even in the ene- 
mies' country. (Vattel, page 452.) 

If this proclamation takes effect according to its purport, our 
"Commander-in-Chief" may indeed say that his " pen is mightier 
than his sword." Although not a conqueror, he will be a greater 
depredator than any warrior from Nimrod to Napoleon. 

I leave this matter to Congress. With your honorable bodies is 
the sovereign sway. If you cannot restrain, you have the constitu- 
tional power to punish the despotic action of the executive. I ask, 
however, no harsh rebuke for what may have been well intended ; 
but only beg, on behalf of humanity as well as policy, that, by reso- 
lution, you supersede the Emancipation Proclamation. 

There is another particular — of great national concern — to which 
I would now ask your attention. It is a government act, and bind- 
ing upon every citizen, unless repealed, or declared to be unconstitu- 
tional by the Supreme Court. I refer to what is called the Confis- 
cation Law. It is entirely within your control; and I will examine 
it freely, but with proper deference and respect. 

This enactment takes from the supposed rebel, and from his chil- 
dren, by a proceeding in rem, without a regular trial by jury, all 
his property, and puts it into the treasury. If it were within the 
granted power of Congress, still it would be a severe penalty, and 



8 

<iot calculated to produce the desired effect. We are endeavoring 
to bring back our revolted fellow-citizens to their allegiance; but. 
in our discipline for this purpose, we ought not to let resentment be 
fomented into rancor, nor allow vengeance to overstep the bounds 
of Christian humanity. Our Onion and Constitution are assailed, 
and we are struggling to preserve them ; but, in doing so, we ought 
• i be careful not to violate, in any degree, the great principles upon 
which <>ur social fabric rests. Waylandsays: " The cheapest de- 
fence of nations, I suppose to be the exercise of justice and benevo- 
lence." This is certainly true. 

Hereditary punishments arc contrary to the law of God. and 
repugnant to the best feelings of our nature. Because a man com- 
mits a crime, shall his wife and his children be reduced to indigence ? 
That is the question which I present to your consciences, and your 
Sympathies, as husbands and fathers. 

Crime is personal: "The soul that sinneth, it shall die/' Inn 
what further saith the divine lav; ? "The son shall not bear the ini- 
quity of the father." (Ezekiel, 18:20.) 

Eistory shows that, in ever)' age of the world, confiscations have 
been the expedients of despots to fill their coffers. The first case 
upon record, perhaps, is that of Naboth, who was stoned to death 
in order that Ahab might have his vineyard. "I thought," says 
Bishop Burnet, "it was neither just nor reasonable to set the chil- 
dren begging for their father's faults. The Romans, during their 
liberty, never thought of carrying punishments so far. It was an 
invention under the tyranny of the emperors, who had a particular 
revenue called the Jisc, and all forfeitures were claimed by them, 
from whence they were called 'confiscations.' It was never the 
practice of free governments." 

The monster Caligula was the first of the Roman emperors who 
practise! this system of plunder. It is said "he oppressed the 
province of Gaul with enormous exactions and confiscations, in order 
to fill his exhausted treasury." He also, as an instrument of 
tyranny, introduced "martial law," and "substituted military exe- 
cution for legal punishment." 

When the "northern hordes" of armed despots and slaves over- 
ran Europe, this system of plunder, under the pretext of punish- 
was universally practised. It passed into England, where it 
was continued during the Saxon period, and became a part of the 
feudal law. 

Judge Blackstone intimates that the reason of any forfeiture for 
crimes is that <ill />/■>>/„■/■/>/ belongs to the crown, and is only / 
as it were, upon good behavior ; and that when an individual does 
wrong to his lord and master, he loses everything that he has only 
enjoyed by kind sufferance. 

This flam has no meaning here. Our lands arc allodial. We 
have ie> "superior lord-." Whatever a man lias, belongs to him and 
bis heir-., W'c have retained the phrase "fee simple," but it every- 
where in our country means an absolute estate of inheritance. Per- 



9 

sonal property of all kinds, also, by the laws of every state, at once 
vests in his children at his death, unless disposed of by will. 

Under whatever pretence, confiscations, by judicial proceedings 
or parliamentary acts of attainder, were continued in England until 
the reign of Queen Anne, when a statute was passed (17 Anne, oh. 
21) declaring that "after the decease of the late Pretender, no at- 
tainder for treason should extend to the disinheriting of any heir, 
or to the prejudice of any person other than the traitor himself." 

In framing our Constitution, this humane and just principle was 
adopted ; and hereditary punishments are forever abolished in our 
free country, by a fundamental law. 

This detestable expedient of tyranny has in fact been banished 
from all Christian communities, by enlightened, philanthropic policy; 
and we must look for its abiding home in eastern despotisms. 
Gmelin, in his "Travels through Persia," says: "Even now, in the 
Turkish empire and in Persia, the property of great men who are 
executed falls to the public treasui-y, or the governors of the prov- 
ince seize upon it. The Chans now enrich themselves with the con- 
fiscated property of criminals, and other fines," etc. I will only 
refer to James II. and the French republicans in the Reign of 
Terror, in memoriam. Our Constitution declares that " no bill of 
attainder or ex post facto law shall be passed ;" and that "no attain- 
der of treason " (upon judicial trial) " shall work corruption of blood 
or forfeiture, except during the life of the person attainted." 

.In my opinion, the late "Act to suppress insurrection, to punish 
treason and rebellion, to seize and confiscate the property of rebels, 
&c." is in direct violation of the constitutional provision. Its pur- 
pose is to take the estate of the alleged traitor from his children, 
and put it into the treasury — not until the death of the accused, but 
forever. 

This is to be effected, too — not upon a regular trial by a court 
and jury, when the party charged shall be present, and " be con- 
fronted with the witnesses against him" — but in his absence, before 
a summary tribunal, and by a proceeding in rem. 

This, it is said, is to "punish treason and rebellion." The Con- 
stitution declares that there shall be "no forfeiture" except for life. 
The late act makes the confiscation absolute and without limit. Can 
there be two penal inflictions for the same offense ? or can there, be 
two modes of proceeding — one under the constitution, and the other 
by this process in rem ? If so, there might be very embarrassing 
results. A man might be "proclaimed " under this Act of Congress, 
and, upon his default, he might be condemned and his property con- 
fiscated : he might afterwards appear, demand a trial before a jury, 
and be acquitted. In such a case, what could be done to restore 
his violated rights ? 

It cannot be. There is one mode by which the guilt of treason 
can be established: a regular trial before a court and jury, as the 
constitution prescribes ; — and there is none other. 

Judge Story says: "By the common law, one of the regular in- 



io 

cidents to an attainder for treason (that is, to a conviction and judg- 
ment in court against the offender) is, that he forfeits all his estate, 
real and personal. His blood also is corrupted; that is, it loses all 
inheritable qualities, so that he can neither inherit any real estate 
himself, from any ancestor or relation by blood, nor can his heirs 
inherit any real estate from him or through him," &c. "Thus in- 
nocent persons are made the victims of the misdeeds of their ances- 
tors, and are punished, even to the remotest generations, by inca- 
pacities derived through them. The constitution has abolished this 
corruption of blood, and general forfeiture, and confined the punish- 
ment exclusively to the offenders; thus adopting a rule founded in 
sound policy, and as humane as it is just." 

It is clear, then, that children cannot be deprived of their inher- 
itance because their fathers have been guilty of treason. Nor can 
there be a conviction of that, or any other crime, (except in the case 
of the President and other civil officers of the United States), unless 
by a regular judicial proceeding before a constitutional court and 
jury- 
Congress cannot declare any citizen a traitor ; nor can it create 
any special tribunal to examine ex parte testimony, and condemn 
to confiscation by a proceeding in rem. 

By Act of April 30th, 1790, even a rebel convicted by a jury 
and sentenced by the court, is not divested of any portion of his 
property. It is: " Provided, always, That no conviction or judg- 
ment for any of the offences aforesaid, shall work corruption of 
blood or any forfeiture of estate." Treason is one of the crimes 
enumerated. This, however, is an act of legislation. It may be 
changed, and a "forfeiture" declared for the life of the offender, but 
no longer. Unless the late Confiscation Law operate a repeal, this 
provision is still in force. I think, however, the Confiscation Act 
is void; and at all events, it can have no ex post facto validity. 

It has been said there is no conflict with the constitution, because 
Congress does not "forfeit" the property of rebels, but "confis- 
cates " it. I will not insult your honorable bodies by the suggestion 
that there was any intention to cover a great wrong by a mere ver- 
bal distinction without a difference. I believe there has been haste, 
perhaps heat, and inadvertency, and that when the matter is exam- 
ined all will be set right. 

The words "forfeiture" and "confiscation," in the sense of penal 
inflictions, are synonymous. They both signify the loss of property 
as a consequence of crime. The first, in its derivation, intimates 
that something has been done " out of rule" or contrary to law ; the 
other expresses only a putting into the fisc or treasury. In its origin, 
r, it had a much severer meaning. Suetonius (in "Caligula") 
says : " ( '"//Jiscare est in publici ovarii jus redigere; non solum de 
bonis, %ed etiam de hominibus, dic^ur" Not only goods but men 
were seized. Littleton defines it: "To seize as forfeit to the king, 
arrest or seize on a man's person, and turn him over to the 
exchequer.'' It has always been a tyrannic expedient, by which 



11 

the people have been plundered in order to pamper parasites. Until 
recently the very term was not known to our laws. We have it in 
history, and in our dictionaries, but it does not appear upon our 
statute-books prior to this unhappy rebellion. Even the word " for- 
feiture," though used in the constitution, and in the law of 1790, 
is not in any acts of Congress except those relating to revenue and 
the collection of duties ; and in these, where personal delinquency 
is involved, the expression "fine" is employed to denote the pen- 
alty. This is a pecuniary mulct, and is in the true nature of pun- 
ishment, because it imposes privation and suffering upon the guilty 
party. Nor must there be " excessive fines " to impoverish a family. 

As a civil law, then, I claim that the Confiscation Act is uncon- 
stitutional, and therefore void. 

But as a war measure, has it any legitimate force ? I say, it has 
not, — as I will show. 

If our present conflict were strictly belligerent, confiscation of 
private property, not actually captured, would not be within the 
range of military law ; and it would be directly opposed to modern 
usage. By the " Rules and Articles for the better Government of 
the Troops of the United States," " any offense against the persons 
or property of the good people of any of the United American 
States" is expressly prohibited. (See 10th Sec, Art. 1st.) 

All " public stores taken in the enemy's camp, towns, forts or 
magazines, whether of artillery, ammunition, clothing, forage or 
provisions, shall be secured for the service of the United States." 
But " whoever shall commit any waste or spoil, either in walks of 
trees, parks, warrens, fish-ponds, houses or gardens, corn-fields, 
enclosures or meadows," &c, "he shall be punished according to 
the nature and degree of the offense." (Sec. 13, Art. 16.) 

And " if any officer or soldier shall leave his post or colors to 
go in search of plunder, he shall, upon being convicted thereof be- 
fore a general court-martial, suffer death, or such other punishment 
as by a court martial shall be inflicted. (Sec. 13, Art. 21.) 

Destruction or pillage is never allowed, "unless by order of the 
Commander-in-Chief of the forces of said States, to annoy rebels 
or other enemies in arms against the said States." (Sees. 13-16.) 

All military interference with the persons or property of citizens 
not actually "levying war" is forbidden, unless there be a present 
hostile array that, in the opinion of the General, may require such 
extreme action in order to their discomfiture. 

In the late unhappy affair at Fredericksburg, it was justifiable, 
perhaps, to shell the brick houses that covered the rebels, who were 
firing Upon our men ; but it was wrong to plunder the dwellings in 
the city, after it was taken. 

There is nothing that falls, properly, under the military regime, 
but what is connected with open, manly warfare. We are not to 
excite servile insurrections, and massacres, and murders and burn- 
ings ; nor ought we to take from innocent wives and children their 
means of subsistence, by confiscations. Let us subdue the rebels 



12 

b j arms — not intimidate to submission, by acts that violate humanity. 

Tiberius nobly replied to an infamous proposal of the Prince of 
the Cattij "that the Unman people chastised their enemies by open 
force, without having recourse to wicked practices or secret machi- 
nations." Ourenemies, at present, arc our fellow-citizens. "Let us 
not forget that — they are men. If we are under the necessity of 
prosecuting our rights by force of aims let us not destroy that 
charity which connects us with all mankind." (Vattel, 127.) 

I admit that in our Government the legislative department is 
supreme, hut still it is limited. "Congress," said Mr. Henry, "by 
the power of taxation, by that of raising an army and navy — and 
by their control over the militia — have the sword in one hand, and 
the purse in the other. - ' There is, however, a higher authority, 
'fh" people, in the Constitution, have retained rights that must not 
he violated. Among them are personal liberty; private property; 
freedom from arrest, unless upon judicial warrant ; trial by a court 
and jury in all cases of alleged crime, "confronted with' the wit- 
and "no forfeiture except during the life of the person 
attainted." 

Congress can pass no confiscation law, nor fix the guilt or con- 
sequences of crime upon any citizen — even a rebel — by an ex parte 
proceeding in rem. Religion, justice, humanity ami true social 
policy are opposed to such extreme measures. 

Nicodemus saith: "Doth our law judge any man before it hear 
him, and know what he doeth ?" And in Paul's case, Festus told 
the malignant Jews: '-It is not the manner of the Romans to de- 
liver any man to die" before that he which is accused have "the 
accusers face to face, and have license to answer for himself con- 
cerning the crime laid against him." (Acts, 25:16.) 

Confiscations and attainders have been dreadful instruments of 
tyrrany. I w ill only refer to the Norman Invasion, the reign of 
Henry the Eighth, the civil wars between the houses of York and 
Lancaster, and the rebellions in Ireland, to show their devastating 
effects. 

\ el even in all this period, where there was a free and calm ex- 
ercise of judicial power, they were condemned. William the First 
claimed all England by conquest. His good feelings revolted at the 
hereditary punishments he had inflicted. A case occurred in which 
he decided against his own arbitrary act. Sherborn, an English 
gentleman, was owner of a castle and lands in Norfolk. The 
"Conqueror" gave the estate to one Warren, a Norman, who took 
! ion. The son of the rightful proprietor, when tine- became 

quiet, claimed as heir-at-law; and upon full trial, in presence of the 
king, who sat mi court, it was decided that the confiscation and 
grant by the Conqueror Were VOld, ami that the claimant was enti- 
tled to Ids inheritance. , 

Tin- numerous bilh of attainder, too. passed by the parliament, 
have generally been repealed, ami the property restored or compen- 
sated. They are now in disrepute and disused. 



13 

Our Confiscation Law is, in character and effect, a bill of attain- 
der, — and, therefore, prohibited by the Constitution. 

There is one feature in it that is objectionable, even beyond the 
divestiture of property,— because it tends to make households the 
scenes of outrage and blood. 

The slaves of rebels are declared confiscate; — not, as in Calig- 
ula's time, to put them into the fisc, or strong box ; but to set them 
free. If it were conceded that Congress has power to confiscate 
the property of citizens charged with treason, by an exparte pro- 
ceeding in rem, without trial by jury, still I claim that they cannot 
declare emancipation. This has been determined by the Supreme 
Court, — by the Executive, — and by a deliberate and almost unani- 
mous vote of the House of Representatives. 

On the 11th day of December, 1838, Mr. Atherton, of New 
Hampshire, offered a series of resolutions. The first was in these 
words : " Resolved, that this government is a government of limited 
powers ; and that by the Constitution of the United States Con- 
gress has no jurisdiction whatever over the institution of slavery in 
the several States of the confederacy." 

This resolution was carried by a vote of, yeas, 198 — nays, 6. 
(See Journal.) There never was a clearer expression of legislative 
opinion on any subject. 

It is true that Congress has since set free the slaves in the Dis- 
trict of Columbia, in violation of the acts of compact, but it is my 
opinion that if the question is ever presented, the Supreme Court 
will declare the whole action unconstitutional and void. 

I claim, then, that if the property of rebels may be confiscated, 
yet slaves cannot be set free. If Government take them from their 
masters, it must assume all the ' obligations that the relation of 
slavery, by law and usage, has fixed upon the owners, — in case of 
old age, decrepitude, disease and helplessness. 

Montesquieu says: "The magistrate ought to take care that 
the slave has his provisions and clothing ; and this ought to be regu- 
lated by law." "The laws ought to provide that care be taken of 
them in sickness and old age." (Vol. 1, page 289.) 

I believe that in all the Southern States the masters are required 
to keep their negroes when they become unfit for service. A for- 
feiture, of course, discharges them from this liability, and our Gov- 
ernment is bound to assume the obligation. They cannot be turned 
loose to maraud or perish. Our officers, it seems, have a proper 
sense of duty in this matter, and thousands of "contrabands" are 
now supported at the public expense. If their number is to be greatly 
increased by the President's Proclamation, or by the proceedings 
in rem under the Confiscation Law, it becomes a matter of great 
concern to the people. How are they to be disposed of? Unless 
they are property, our measures operate no divestiture ; and if they 
escape, and our Government refuses to execute the Fugitive Slave 
Law, they will spread over the land as paupers and pillagers. 
Should we recognize them as "chattels," or as anything having 



14 

ownership, and declare them forfeited, we must take care of them, 
and provide for their wants : they belong to the nation. Should 
we keep them, and make them work, our Government would become 
a slaveholder, on a grand scale ; if we sell them, and put the "price 
of blood" into the treasury, we fix, indelibly, the national seal in 
approbation of slavery. 

But it matters not in what way they are disposed of, the heirs of 
convicted traitors will, under the constitution, have a claim for the 
value of their lost servile inheritance. (See Amendments, Art. 5.) 

This subject, then, is one of great interest, and demands the 
gravest consideration. The legal and political condition of the 
negro slaves in the rebel states ought to be well understood. I fear 
it is not. 

Slavery is an old "institution" among men. It began soon after 
the deluge, when the curse was pronounced upon the descendants of 
Ham : "A servant of servants shall he be unto his brethren." In 
the Hebrew language, the word Ham means burnt or black; and it 
is wonderful how the malediction has followed the colored race in 
all ages of the world. 

The early Egyptians had slaves, at the time their first history 
begins. Hagar was given to Sarah as a handmaid, and her domin- 
ion over her was absolute. Abraham was a large slaveholder, and 
so were Isaac and Jacob. It subsisted among the Israelites, and 
just laws were adopted, or given by divine authority, for their gov- 
ernment. (See Paxton's Illustrations, 2d vol. p. 385.) 

In Homer's time, slaves were common in Greece ; and at a later 
period, in Athens, there were only twenty-one thousand citizens, 
and four hundred thousand men, women and children in actual 
bondage. 

The Romans had slaves called "servi," from servare ; being cap- 
tives taken in war, and not killed (as the conqueror had a right to 
do) but saved, as the word means, to yield money either by their 
labor or by their prices when sold. 

By the civil law, the power of making slaves is regarded as a 
national right, and follows, as a natural consequence, from war. 
" Jure gentium," says Justinian, "servi nostri sunt, qui ab hostibus 
capiuntur." — ("By the law of nations, those who are taken from 
our enemies are slaves.") The supply from the Roman wars was 
very great. Plutarch says that at one time, in the camp of Lucul- 
lus, a slave was sold for four drachms, or three shillings sterling. 

But the relation existed in every age and in every country. At 
the very time the sturdy barons extorted from King John, at Runny- 
mead, the acknowledgment of their rights, perhaps two-thirds of 
the people were in bondage. Nothing was said in the Magna Charta 
about "liberty and equality" to all men. In fact, the "villeins" 
or slaves were not considered as having any privileges ; they were 
regarded as property, and were sold with the land at the end of the 
tenth century. 

A law of Ethelred fixes the prices of certain articles, as follows: 



15 

" Of a man or slave, a pound ; of a horse, thirty shillings ; of a 
mare or colt, twenty shillings," — and so on through many different 
items. 

I must, however, pass over a great deal of curious historical de- 
tail, and come to the particular case of the negroes. 

"Slavery," says the writer of Universal History, "is indigenous 
in Africa. In Loango, and in many other nations, all the common 
people are slaves. But, what is worse, they are cannibals. Human 
flesh is eaten on the western coast of Africa, and is offered to their 
idols." Dr. Oudnay says: "The wells are generally surrounded 
by the bleached skeletons of slaves, who had been left to perish 
there by their masters." The chief worship of the Giagas consists 
in frequent sacrifices of human victims, particularly children. Cap- 
tives taken in war were always devoured, or immolated to appease 
their deities. "In such a country" says a writer, "slavery is a 
deliverance" 

The fact is that humanity first introduced the negro into Europe. 
This may be denied, but history proves it. When the Portuguese 
erected their first fort at Elmina, in the year 1481, they found that, 
in various ways, the great part of the people of the interior were 
in a state of cruel bondage. Some were born in that condition ; 
some had sold themselves, their wives and children, as was the cus- 
tom ; others were so punished for crimes, or for a kind of pretended 
witchcraft called obi; many passed into servitude for debt ; and 
prisoners were slaves by right of war. (See, also, Wilberforce's 12 
Propositions.) 

The Europeans, having found out the African chiefs, made a treaty 
with them, in which it was agreed that the kings on their part 
should, from that period, sentence prisoners of war and convicts to 
servitude with the whites ; who, on their part, engaged to furnish, 
in exchange for them, the luxuries of the north. 

This contract, which took effect immediately, was the foundation 
of the slave trade. Spain soon engaged in the traffic, and negroes 
abounded in that kingdom. 

In 1552 and 1557 expeditions were sent out from England, under 
Sir John Hawkins, and it was said that Queen Elizabeth was a 
partner in the concern. 

Mr. Bancroft says that John Smith, of Boston, and Thomas Key- 
ser, first brought the Colonies to regard slavery. In 1654 they im>- 
ported a cargo of negroes to Massachusetts. At first the enterprise 
was denounced, and the guilty men were punished. The legislature 
ordered the slaves to be restored to their country, at the public ex- 
pense. At a later period, however, both Indians and negroes were 
brought into the state in bondage, and the trade was greatly ex- 
tended. 

Soon after the first settlement of James river, in Virginia, a 
Dutch ship landed twenty negroes, and sold them. This was the 
beginning of slavery in the Southern colonies. The early settlers in 
all that region struggled nobly against it. Georgia was earnest in 



16 

Opposition, and the House of Burgesses of Virginia passed no less 
than i. Qty-three acts for the suppression of the slave trade, which 
. d by the king. The commercial class took hold of the 
matter, and the "institution"' was established. Old and New Eng- 
land engaged extensively in the detestable traffic. As there was 
no marriage among the blacks at an early period, the civil law rule, 
•• /' /s- sequitur ventrem," (The child follows the condition of the 
mother), was universally adopted. All born of slave women were 
slaves. The number increased rapidly; in 1790 there were 697,897, 
— extended over ail the states except two. There are now between 
four and live millions, — confined mainly to the country south of 
Mason & l>i\on's line. "What must be done with them? is the in- 
teresting question. 

This matter ought to be examined calmly, in the light of truth 
and policy. 

If slavery is an evil, the people of the South did not originate it. 
They found it as it is, and think it is beyond their control, unless 
by encountering greater mischief. Perhaps the trade was com- 
ment i by Massachusetts, who took as prisoners many Pequod In- 
dian.-, and sold them in the West Indies. This was in 1637; but 
New England had slaves before this: for the " Confederation of 
Massachusetts, New Plymouth, Connecticut and New Haven," in 
1643, when they formed their articles of union, established the first 
fugitive-slave bill that ever was enacted. In the eighth article is 
the follow tng provision : "It is agreed that if any servant run away 
from his master into any of the confederate jurisdictions, that in 
such case, (upon certificate from one magistrate in the jurisdiction 
out of which said servant fled, or upon other due proof), the said 
servant shall be delivered to his master, or any other that pursues 
and brings such certificate and proof." (1 Pitkins, 477.) 

The first fugitive-slave bill, too, which was before Congress in 
1791, was reported by Mr. Bourne and Mr. Sedgewick, of Massa- 
chusetts, and Mr. "White, of Virginia. It was a similar act sent 
from the Senate, however, that was passed in the House on the 5th 
February, IT'. 1 -'), and the vote stood yeas 48, nays 7, — every mem- 
ber from New England but five voting for it. It was, therefore, a 
Northern measure — honorable to the men who were determined to 
fulfil the compact fairly made. 

1 make these references merely as intimating a suggestion that 
"hard words" on this subject, coming from a particular region, are 
unsavory, and not altogether just. Let them "that are without sin 
east tli.' first stone." Criminations and recriminations are idle and 
mischievous. They lead to rancor, and not to peaceful adjustment. 
We have slavery, and — at least since 1713 — by an authority that 
the colonists could not control. In that year, by the Treaty of 
Utrecht, between Philip the Fifth, of Spain, and Queen Anne, of 
England, the •• Assionto contract" for punishing negroes was coni- 
mitted to the South Sea Company just then established. This gave 
full license to the trade, and " the contraband commerce was carried 



17 

on with a facility and to an extent unknown in any former period." 

(See Robertson's History of America, vol. 3, p. 271.) 

In fact, negro bondage has always been legitimated by govern- 
mental authority, in this country, before the Revolution, and it is 
recognized by the Constitution of the United States. To speak of 
it, therefore, as a crime against the laws of God and man, is un- 
profitable. We may all regard it, in the present age of Christian 
humanity and progress, as a social evil, which ought to be removed, 
by common consent, in a manner consistent Avith private rights and 
sound, just policy. In my opinion, we can never have a cordial, 
trustful peace and union again until this disturbing element of dis- 
cord and strife is happily settled. Can this be done ? I think it 
may ; and I beg leave to present to your honorable bodies a plan 
for your consideration. 

First, however, let me say how it cannot be done. 1 say, then, 
that slaves cannot be freed by an executive proclamation, not sus- 
tained by previous legislative warrant. Such an act would have no 
authority, and ought to be superseded. Any subsequent ratification 
would be ex post facto, and therefore unconstitutional. 

They cannot be freed by "martial law — which is no law" and 
therefore does not exist in our country : it is military despotism. 
They cannot be freed under the "Rules and articles" made "for 
the better government of the troops ; '' for those only operate upon 
"officers and soldiers." 

They cannot be taken as booty, and set free : there is nothing 
that, by the laws of war, is regarded as booty, pillage or plunder, 
except that which is seized in the strife of arms. This does not 
change ownership ; and as slaves can always be identified, the mas- 
ter, if he can recover them, has still, by the law of post liminium, 
his right of property complete. (See Vattel.) 

In the War of 1812, the British army deported a great many 
slaves from the Southern States. Our Government claimed indem- 
nity, and actually received, in the year 1827, through the mediation 
of the Emperor of Russia, $1,204,960, for the benefit of the 
claimants. 

The time may come when the justice of Congress will compensate 
for the "contrabands" that are now fed at public cost. 

I say, further, that slaves cannot be set free by an act of confis- 
cation. Congress can, by law, declare that the property of rebels 
shall be forfeited during life, but it cannot forfeit the property of a 
single one of them by an ex parte proceeding in rem. It can only 
be done upon a regular trial before a court and jury. So is the 
Constitution. 

Finally, as to these negative suggestions, I maintain that although 
slaves can only be freed by an act of manumission, yet the masters 
cannot do that without the consent of the bondmen themselves, ei- 
ther expressed or implied. 

This may seem strange, but the law is so, as will appear by a 
little examination. 



18 

Slavery is a compulsory relation, yet there are mutual and recip- 
rocal obligations. 

The master, by the laws of the several states, and by recognition in 
the constitution of the United States, has a right to the "service or 
labor" of his slave ; which he may coerce by such discipline as a man 
may use with his Bon in his minority, or -with his apprentice. 
But, on the other hand, there is a corresponding obligation on the 
master, in conformity with the law of the land, to find his servant 
in food, raiment, fuel, medicine in sickness — and whatever is neces- 
sary to his health. 

He cannot relieve himself from these duties by saying to his old, 
infirm or decrepid slave — "go, you are free." 

If the master, however, is discharged from these duties by a con- 
stitutional, governmental act, the nation must bear the burthen. 

It is my opinion, upon careful examination, that "proclamations 
of emancipation" are only mischievous; — and that confiscation, or 
forfeiture of slave property, is not within the range of military law. 
I believe, too, that Congress cannot free a single slave without vio- 
lating our written charter. — Yet I am fully convinced that a plan 
may be devised to remove the incubus of slavery and restore our 
great country once more, to peace and harmony. It requires, how- 
ever, una /tii/tit// among leading politicians, in order to secure the 
concurrence of all the people. Suggestions that may lead to so 
happy a result ought to be received kindly. 

As a matter of deep concern and common interest, I beg leave 
to present some views on this subject. Before doing so, however, I 
would say that I think the people of the North and the South have 
greatly misunderstood one another on the slavery question. The 
greatest and the best men of the southern section of our country 
have been opposed to the system of bondage, and have anxiously de- 
sired to have it safely removed. I could refer to the writings and 
speeches of Washington, Jefferson, Henry, Tucker, Harper, Mer- 
cer, Gaston, Drayton — and a host of statesmen in proof. 

lean say also of the people of the North, that, although there 
are enthusiasts among them, who would derange the system of the 
universe, in order to carry out their wild and impracticable scheme 
of abolitionism, — yet the great part of the population is influenced 
by a desire to do what is true and patriotic, by a just and honora- 
ble process. Why cannot good men meet on a common platform of 
christian philanthropy, and act together? I appeal to all such. 
Religion and humanity need not disregard prudence and policy. 

It was a movement in Virginia that originated the colonization 
society. I regard this as the best scheme that ever was devised 
for the future welfare of the black race of our country; and perhaps it 
may prove the greatest missionary enterprise that has ever been 
since the days of the apostles. 

It is nearly a year since I submitted to the President a plan of 
voluntary manumission, — referring to the colony of Liberia, as a 
happy home for our civilized, and, to some extent, christianized 



19 

blacks. I requested him, if he approved, to present it to your hon- 
orable bodies, for your consideration. 

He did not think proper to notice it; but has since offered some 
views of his own, with like object. I concur with him heartily in 
the principles he asserts, and only differ with him as to the consti- 
tutionality and practicability of the measures to carry them out. 
He proposes gradual emancipation with the consent of all concerned; 
compensation to oioners, and the purchase of a territory, to which 
the blacks may remove and hold, as their country. 

I object to this plan only because it cannot be operated success- 
fully. My reasons I will briefly give. 

1st. The owners of slaves, holding them under the law of the 
land as property, will never consent to relinquish them without 
equivalent. 

2d. The people, in addition to our war debt, may not be willing 
to have their future means, and that of their children, charged with 
the principal and current interest of an immense sum, the price of 
slaves. 

3d. Congress has no power to create such national liability. 
Their power to tax is defined and limited. The President proposes 
to call a convention, to amend the constitution, so as to embrace the 
objects contemplated. In our present social condition this would 
be unmooring our national vessel in a stormy sea, and the end might 
be shipwreck. I leave this however to the wisdom of Congress. 

4th. The President seems to repudiate the colony of Liberia, 
and contemplates buying a new home for the blacks in the isthmus 
between the two American continents. 

This plan was submitted to your honorable bodies many years 
ago, and I will adopt, as my own insuperable objections, the reas- 
ons given in a report of the committee of the House of Represen- 
tatives on the 11th February, 1817, (see Journal.) I will quote 
only a single passage, but ask that the whole may be examined. 

"Every new territory established by our government, constitutes 
indeed a colony, formed with great ease; because it is only an ex- 
tension of homogeneous settlements. But in contemplating the 
colonization of the free people of color, it seems obviously neces- 
sary to take a different course. Their distinct character and rel- 
ative condition, render an entire separation from our own states 
and territories indispensable. And this separation must be such 
as to admit of an indefinite extension. Hence it seems manifest 
that these people cannot be colonies within the limits of the United 
States. If they were not far distant, the rapidly extending settle- 
ments of our white inhabitants would soon reach them ; and the evil 
now felt, would be renewed, probably with aggravated mischief." 

Again. "Turning our eyes from our own country, no other, 
adapted to the colony in contemplation, presented itself to our 
view, nearer than Africa, the native land of the negroes; and prob- 
ably that is the only country on the globe to which it would be 



20 

practicable to transfer our i'n c people of color with safety ami ad- 
vantage to themselves and the civilized world." 

This report led to the establisment of the colonization society, os 

which Judge Washington of Virginia was the first president. Its 

progress and its prosperity have exceeded all expectation, and it if 

the hope of the christian and philanthropist, for the vast continent 

rica, now in heathen darkness and Bavage barbari 

Without farther remark as to the presidential plans, which I only 
oppose because they are impracticable, 1 beg your permission to of- 
fer my own scheme. Let me premise, however, that in the extinc- 
tion of slavery ^r the process of colonization, by any direct exer- 
cise of power, the general government cannot control. Congress, 
however, can "dispose of the public lands" ad libitum and without 
any constitutional restraint. It may appropriate them so as to 
promote the general welfare, by removing a constant source of ir- 
ritation, jealousy and distrust. En this way only I ask its aid. I 
call for no exercise of doubtful authority. If the measures 1 
propose will not tend to restore UNION (with harmony and confi- 
dence) to our now disturbed country; if it will not make our social 
institutions more stable and secure, advance the wealth and pros- 
perity of the whole nation; and in every way increase the happi- 
ness of the people, I will consent to abandon the project. 

It is, however, my decided conviction that in all aspects and in- 
fluences, the results will advance the common good and that, in any 
event, the measure I urge "will show that the government aims to 
carry out the honest desires of the whole nation by just, fair and 
practicable means. With these views I proceed to offer 



A PLAN FOR THE EMANCIPATION OF THE COL- 
ORED RACE. 

First. I propose that Congress direct the unsold public domain 
to be surveyed into tracts, in the usual manner; causing each sub- 
division to be valued, according to its quality, in reference to its 
soil, locality, mines, timber, water and other natural advantages; all 
which particulars shall he recorded in hooks to he provided, and 
kept in convenient places, for examination, hy all who may be in- 
terested. 

Second. Whenever any owner of slaves shall determine to man- 
umit them, upon the condition that they consent to go to Liberia, 
he shall make his intention known to the officer who may be ap- 
pointed by the government to attend to the business; and thereupon 
measures shall be taken to have the said slaves valued. To effect 
this the owner of the slaves may choose one appraised, and the offi- 
cer of the government another. 

Third. When the valuation is made, the owner of the slaves 
shall receive for the amount, land scrip, which he may locate in any 
part 6f the United States, where the public landsare surveyed and 



21 

valued; leaving every alternate tract to the government, for sab at 
any subsequent period, in the usual manner. 

Fourth. That as soon as tho colonization society shall secure to 
each adult male, so manumitted, 160 acres of land in Liberia, 
the President of the United States shall cause the said slaves to be 
conveyed to the places designated; and for this purpose the public 
steamships or other vessels may be employed. 

Fifth. The government will provide for the said slaves one 
year's subsistence, and will also furnish suitable agricultural imple- 
ments, &c, so as to enable them thenceforward to support them- 
selves and their families by their own industry. 

Sixth. The colonization society and the local government of Li- 
beria, are to be parties in all the arrangements ; and to give their 
hearty aid and co-operation to eifect the objects. 

This is the action I propose on the part of the National Admin- 
istration. There is nothing coercive. It merely offers to apply, as 
a measure of "general welfare," the public lands, to pay a reasonable 
compensation to those who, yielding to common feeling and sentiment, 
consent to manumit their slaves. This is but just. Popular move- 
ments have interfered with the owner's quiet enjoyment of his slave 
property, and have rendered it insecure. The loss he incurs, there- 
fore, by giving them freedom, ought to be borne by the nation, and 
discharged out of the "eminent domain." 

What I thus desire from Congress is entirely inductive. It merely 
promises to the owner of slaves, who may be influenced by humanity 
or common sentiment to set them free, their fair value in land to be 
selected by himself. But, if the proposed enactment is supported and 
carried by Northern members, it may convince the rebels that there is 
no disposition to do them wrong in that much-abused section. Perhaps 
it may induce misguided men to pause in their mad career, and re- 
flect upon their course. If they would do so, they might arrive at 
the happy conclusion that emancipation is not only a duty, but is 
really their highest interest. I firmly believe that Southern lands, 
under the power of free labor, might be made to produce double 
what they will do under slave culture. This question, however, I 
do not mean to discuss at present ; but only intend to say, that if 
kind feelings and good opinions could be entertained by slaveholders 
— and all of us — it would do what war never can effect : restore 
true union, harmony, and general prosperity. It would soon remove, 
too, the great root of bitterness, by a co-operative effort to extin- 
guish bondage in the only way by which it can be fully and finally 
effected. This must be by state laws, passed by the representatives 
of the owners of slave property. Initiatory steps — to be binding — 
must originate in the very region where the mischief exists. Con- 
gress cannot interfere, unless by^a/recommendatory resolution. 

I propose, then, as a suggestive part of my plan — 
First. That each slave state pass a law providing that, as soon as 
the other states and the United States adopt corresponding measures, 



22 

then the rale of the civil law — that the children of slaves follow the 
condition of the mother — shall be abolished, and that slavery by 
birth shall no longer exist. I do not ask for compulsory emancipa- 
tion. 1 Leave it optional with owners to accept or reject the offer 
which 1 pray Congress to make; but I wish that all born after the 
law I have proposed, shall be free, as God and nature intended. 

This is the primary movement, and strikes at the very foundation 
of the "institution.' 1 It is within the constitutional powers of the 
several stair governments, and interferes with no subsisting right. 
.V" i/i'hi cm claim "property in that whieh u n<>t in being. Such a 
law. therefore, would be no greater exertion of legislative authority 
than is often exercised in adjusting the rules of policy in regard to 
estates both veal and personal. 

The very measure I propose was adopted by Pennsylvania, and the 
validity of the enactment was never questioned. 

By the third section of the Act of 1780, it was declared that 
•• all persons, as well negroes and mulattoes as others, who shall be 
born within this State, shall not be deemed and considered as ser- 
vants for life or slaves, and all servitude for life, or slavery of chil- 
dn n. in consequence of the slavery of their mothers, in- the case of 
all children born within this State, from- and after the passing of 
this act as aforesaid, shall be and hereby is utterly taken away, ex- 
tinguished and forever abolished." 

This act made Pennsylvania a free state ; and such a law I believe 
every legislature has constitutional power to pass. The process is 
not direct or immediate freedom to slaves — which can only be by 
the voluntary act of the master — but it strikes at the root of the 
social evil, and will, after some time, remove it forever, without im- 
pairing any right of property. 

The only other emancipation measure I propose is — 
Second. That, by laws or resolutions, every legislative body 
in the whole United States should recognize the Colonization Soci- 
ety, and give it such countenance and aid as will enable it to carry 
out to full success its noble scheme of philanthropy. There never 
was an association of men more deserving of grateful acknowledge- 
ments. Comparatively few in numbers, and with limited means, 
they have effected what, in the difficult circumstances in which they 
have been placed, is an astonishment to the world. They have laid 
the foundation I'm- a great nation, in a fertile country and a mild 
climate. For soil, water, and every other natural advantage, it is 
-in passed by none on the globe. They have prepared a home for 
our colored race ; where they may be raised to the proper level of 
humanity, and, perhaps, perform the part of missionaries, in civil- 
izing and christianizing cannibal Africa. 

I have thus presented a sketch or outline of the mode in which 
emancipation may be effected, without violation of personal rights. 
or any coercive process; without cost, really, to the nation, and 
without any exercise of unconstitutional power. 

My plan suggests several particulars worthy of note : 



23 

1. It asserts the great principle that no man can be born a 
slave ; and that to place a helpless infant in that condition, from 
the mere accident of birth, is contrary to the laws of God and 
nature. 

2. It proposes to extirpate a social evil, affecting the whole nation 
(at least by sympathies of humanity and sentiment), by the appli- 
cation of a common fund — the public lands — and through the con- 
stitutional action of the General Government. 

3. It contemplates, as just and reasonable, that the owners of 
slaves, who yield them to the wishes of the country, and to a wise 
policy, shall be moderately compensated for their loss of property, 
out of the national domain. 

4. It also secures, by the increased value of the alternate tracts 
of land reserved, a full reimbursement to the treasury of all the 
expenses incurred. I think that by this plan of settlement, through 
the interested activity of the owners of the "scrip " thus applied, 
the population of the country will advance in a regular way, with- 
out any hot-bed process ; and that the tracts of land reserved by 
the government for subsequent sale will be worth more, eventually, 
than the whole could be sold for at present. 

But — wh%t is better than all else — it will, I think, bring us a 
happy peace. " Hard words, jealousies and fears," on this exciting 
subject, will no longer disturb ; the present fratricidal strife will 
cease; mutual confidence and harmony between the^North and the 
South will be restored; the internal trade between the great sec- 
tions will be .increased ; general prosperity will follow, and the Na- 
tional glory be more advanced than it can ever be by abolitionism or 
wars of "secession." 

These happy results I think will folio ay if the system I have thus 
proposed for the disposal and application of a portion of the public 
lands be adopted. . 

But, what is still more and better, the measures I have proposed 
I believe to be right, because they aim at right ends by right means. 

I submit what I have presented, to the consideration of your 
honorable bodies, and pray the legislative action thp,t may now be 
necessary to " promote the general ivelf are" in the matters to which 
I have referred. 

TIL H. BAIRD. 

January 1, 1863. 



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